Hart v. State, CR-05-0056.
Decision Date | 23 November 2005 |
Docket Number | CR-05-0056. |
Citation | 939 So.2d 948 |
Parties | Gary Davis HART II v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Eric J. Magnuson, Minneapolis, Minnesota, for appellant.
Submitted on appellant's brief only.
The appellant, Gary Davis Hart II, appeals the circuit court's order setting aside his sentence of death pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and sentencing him to life in the penitentiary without the possibility of parole.
In 1990, Hart was convicted of capital murder for the killing of Todd Evans during the course of a robbery. He was sentenced to death. Hart's conviction and his sentence were affirmed on direct appeal. Hart v. State, 612 So.2d 520 (Ala. Crim.App.1992), aff'd, 612 So.2d 536 (Ala. 1993).
Hart also filed a petition for postconviction relief under Rule 32, Ala.R.Crim.P. attacking his conviction. On appeal, we affirmed the denial of Hart's Rule 32 petition. Hart v. State, 796 So.2d 446 (Ala. Crim.App.1999) (table), aff'd, 800 So.2d 140 (Ala.2000).
In August 2005, the attorney general filed a motion in the Mobile Circuit Court requesting that the circuit court vacate Hart's death sentence based on the United States Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which prohibited the imposition of a sentence of death on any individual under the age of 18 when the offense was committed. Hart was 16 when he committed the murder. The motion stated:
The circuit court vacated Hart's death sentence and sentenced Hart to life imprisonment without the possibility of parole—the only other available sentence for a person who has been convicted of a capital offense. See § 13A-5-45, Ala.Code 1975. Hart filed a notice of appeal. The question presented by this case is whether Hart has the right to appeal this ruling.
Section 12-22-130, Ala.Code 1975, governs appeals from convictions. This statute states:
"A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court."
Dawson v. State, 37 Ala.App. 16, 17, 66 So.2d 567, 568 (1952) (emphasis added). The Alabama Supreme Court in Allen v. State, 141 Ala. 35, 37 So. 393 (1904), addressed whether a defendant could appeal an order scheduling a date for the defendant's execution. The Supreme Court stated:
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...Judge for the Ninth Circuit, sitting by designation. 1. The court's dismissal order cited one of its earlier decisions, Hart v. State, 939 So.2d 948 (Ala.Crim.App.2005), which also involved a juvenile who was originally sentenced to death but whose death sentence had been vacated following ......
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